THURSDAY, 20 SEPTEMBER 2012
"Sign of the Times": Times without Signs
By a strange quirk of fate, when asking for directions to the Workshop on the Protection of Indigenous Peoples' Rights, this blogger was misdirected to the Workshop on Times Without Signs. Once inside the room and unable to retreat without giving at least the semblance of offence, he stayed.
The thesis underwriting this Workshop is this:
First to speak was Anthony Gibson, a branding and advertising expert based in Portugal. He discussed the pressures imposed on brands for influencing behaviour leading to non-communicable diseases and other evils, adding that there was no evidence to support such a connection. It was important to lobby the lobbyists, he urged, noting how willing Europe's decision-makers are to listen -- and how little they know.
The tobacco industry's battle to preserve the right to use its brands was coming to an end, he said, but the alcohol and food industries are next to be targeted. Obesity, diabetes and lung cancer are among the diseases which, through plain packaging and brand limitation, the World Health Organization and some European countries seek to reduce -- though again there is no evidence to support the contention that this reduces consumption of harmful products, he added.
Next to speak was MARQUES Council member Massimo Sterpi, who focused his talk specifically on the regulation of tobacco advertising and marketing. The tobacco package was not a miniature billboard, he explained, but regulators were viewing it as such, not as the minimum unit in which tobacco products are sold. Reminding Workshop participants that the trade mark, and trade dress, are relied on by consumers as a matter of faith, enabling them to repeat purchases after an initial satisfactory purchase, Massimo criticised the notion that people smoke because they are attracted by the package: branding influences the choice of which cigarette to smoke, not whether to smoke or not.
Massimo then went on to discuss the negative effects of plain packaging, particularly when each instance of plain packaging serves as a precedent for further diminutions of brand use. These include the facilitation of counterfeiting and, since, in the absence of any brand narrative, the only remaining way to compete is to lower prices, which makes cigarettes more accessible to smokers with limited means. Extended to non-tobacco products such as alcohol, confectionery and foods, the same effect can be expected.
Articles 17 and 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) also came under review. These provisions are intended to protect the use of trade marks against being encumbered by special requirements and state that only limited exceptions to the trade mark right may be made. Article 8 allows member states to legislate for health etc -- but only in so far as that legislation is not incompatible with TRIPS. Equivalent provisions of the Paris Convention were also cited, followed by an analysis of the protection to which trade mark owners are entitled under human rights laws guarding freedom of speech and the right to own property. The consumer has the right to identify the origin of goods by being able to see their trade mark, according to the Court of Justice of the European Union in Case C-349/95 Loendersloot, at para. 24.
There then followed a lively discussion on the legal and practical dimensions of plain packaging, not just of tobacco products but of other consumer goods.
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